Issue 18 - December 2000

Parliament passed the Copyright Amendment (Moral Rights) Act 2000 on 7 December 2000. The legislation, which amends the Copyright Act 1968 will commence on the day it receives Royal Assent. This is expected to take place this week. The Act introduces, for the first time, comprehensive moral rights protection for Australian creators of literary, dramatic, musical and artistic works and film-makers.

The Act implements expressly two moral rights that are separate and distinct from the economic rights in a literary, dramatic, musical or artistic work or film. They are the right of attribution of authorship - to be named in connection with one’s work; and the right of integrity of authorship - the right for an author/creator to object to treatment of a work that demeans their reputation.

The Act also re-enacts, and extends to films, the existing right in the Copyright Act (see Part IX of the Copyright Act) against false attribution of authorship.

The new provisions give the courts the discretion to choose from a wide range of remedies for infringement of a moral right, including ordering a public apology and reversal of a mistreatment of a work. If contemplating the grant of an injunction, a court must first look at ways of encouraging the parties to settle.

The new provisions also recognise the different nature of films compared with literary, dramatic, musical and artistic works consistent with the treatment of such subject matter under the existing Copyright Act. Arrangements in the amendments that were developed to reflect the needs of the film and television industries will not be applied, without good reason, to creative sectors outside those industries. For example, while the right of integrity of authorship will apply to existing literary, dramatic, musical and artistic works, it will only apply to films made after the commencement of the legislation.

Further, following amendments moved by the Government during the Senate debate on the Bill, consent provisions for works have been made separate and different to those for films. Another amendment made in the Senate was to add a provision that expressly states that consent obtained under duress or by a false or misleading statement will not be valid.

The legislation takes account of extensive consultation between the Government and stakeholders. It creates a moral rights regime that leads the common law world.

A copy of the Bill and the Government amendments is available at www.aph.gov.au/legis.htm.

The Government is considering its response to the report, which examines the impact intellectual property laws have on competition.

The committee generally endorsed Australia’s intellectual property laws as being consistent with competition policy. Several aspects of Australia’s intellectual property laws were considered by the Committee to be of significance in relation to their effect on competition. These included restrictions on parallel imports, matters related to the administration of copyright collecting societies, certain aspects of the operation of the patent system and provisions of the Trade Practices Act 1974 exempting the licensing of intellectual property from its coverage.

At the request of the Government, the committee provided its report on parallel importation of copyright material in June. The report’s recommendations for open parallel importation were consistent with the decision that was taken by the Government at that time, to introduce amendments to the Copyright Act to allow parallel importation of books printed music, periodical publications and computer software products. These amendments are currently being prepared.

The Government has indicated that it will move swiftly in bringing forward its response to the committee’s recommendations.

Copies of the report are available online at http://www.ipcr.gov.auby phoning Kay Collins at IP Australia on 02 6283 2402.

The committee tabled its report on 4 December 2000.

The committee’s report contains some 22 recommendations dealing with a wide range of issues, including technological protection devices, criminal sanctions against infringement and civil remedies for copyright infringement. In summary, the Committee expressed a view that a range of measures should be implemented to improve the protection for the enforcement of copyright. It found that infringement of copyright in Australia is low by international standards. Nevertheless, it considered that copyright infringement is a real problem affecting Australia’s economy and is a costly burden to many Australian industries that rely on creative endeavour. It recommended legislative and non-legislative action it considered would enable enforcement of copyright in a manner that would have a greater practical effectiveness for copyright owners. Some recommendations on institutional arrangements for enforcement were also made.

The Government’s response to the Report will be provided as soon as possible.

Copies of the report are available online at: http://www.aph.gov.au/house/committee/laca/copyrightenforcement/contents.htm.

Mr Chris Creswell, a consultant on copyright to the Attorney-General’s Department, is the head of the Australian delegation to the Conference.

A Government discussion paper on Performers’ Intellectual Property Rights was issued in December 1997. It canvassed the advantages and disadvantages of giving performers similar rights over sound recordings of their performances to those that the producers of the recordings now have and will have on the commencement of the Copyright Amendment (Digital Agenda) Act 2000. The paper also sought views on giving actors rights in films and TV programs. The responses to that paper, and more recent submissions provided in response to a call for comments on the proposals for the treaty, have provided assistance in determining the Government’s position in relation to the Conference.

The performers’ rights in sound recordings under direct consideration in the discussion paper were those required by the WIPO Performances and Phonograms Treaty (WPPT) of 1996.

The rights for film and TV actors in the "Basic Proposal" being considered by the WIPO Diplomatic Conference are mostly similar to those under the WPPT. The objective of the proposed new treaty is to develop and maintain the rights of performers in their audiovisual performances consistent with the goal of facilitating global commerce in audiovisual productions. There is also a need to update and harmonise, to the extent possible, the application of these rights in the context of digital technology.

The "Basic Proposal", the draft rules of procedure for the conference and the conference agenda are accessible at: http://www.wipo.org/eng/meetings/2000/iavp/index_2.htm.

Development of amendments to the Copyright Regulations and Copyright Tribunal (Procedure) Regulations arising from the Copyright Amendment (Digital Agenda) Act 2000 is progressing, in consultation with affected parties.

Preparation of amendments to update the schedules to the Copyright (International Protection) Regulations is at an advanced stage.

When implemented, this decision will remove the copyright impediment under the Copyright Act on Australian importers commercially importing legitimate copies of these items and making them available for sale/supply to consumers in Australia as soon as they are released anywhere in the world.

Information sheets about parallel importation are available on the AGD website at http://law.gov.au/publications/pubs.htm (scroll to Copyright Reform: Parallel Importation of Books and other Published Works; Copyright Reform: Parallel Importation of Software Products).

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